Here is the link for the 2005 CDC Quarantine Proposal
http://www.ojp.usdoj.gov/BJA/pandemic/CRS_Quarantine_Authority.pdfI'm pasting the docu also. Was Updated August 16, 2006:
Federal and State Quarantine and Isolation AuthoritySummary
In the wake of recent terrorist attacks and increasing fears about the spread of
highly contagious diseases, such as severe acute respiratory syndrome (SARS) and
pandemic influenza, federal, state, and local governments have become increasingly
aware of the need for a comprehensive public health response to such events. An
effective response could include the quarantine of persons exposed to infectious
biological agents that are naturally occurring or released during a terrorist attack, the
isolation of infected persons, and the quarantine of certain cities or neighborhoods.
The public health authority of the states derives from the police powers reserved
to them by the Tenth Amendment to the U.S. Constitution.
The authority of the federal government to prescribe quarantine and other health measures is based on the
Commerce Clause, which gives Congress exclusive authority to regulate interstate
and foreign commerce. Thus, state and local governments have the primary authority
to control the spread of dangerous diseases within their jurisdictions, and the federal
government has authority to quarantine and impose other health measures to prevent
the spread of diseases from foreign countries and between states. In addition, the
federal government may assist state efforts to prevent the spread of communicable
diseases if requested by a state or if state efforts are inadequate to halt the spread of
disease. Some state laws are antiquated and, until recently, have not been reviewed
to address the spread of disease resulting from a biological attack. Other state laws
do not cover newly emerging diseases such as SARS or pandemic influenza. In light
of recent events, however, many states are reevaluating their public health emergency
authorities and are expected to enact more comprehensive laws relating to quarantine
and isolation. Public health experts have developed a Model State Emergency Health
Powers Act to guide states as they reevaluate their emergency response plans.
This report provides an overview of federal and state public health laws as they
relate to the quarantine and isolation of individuals, a discussion of constitutional
issues that may be raised should individual liberties be restricted in a quarantine
situation, and federalism questions that may arise where federal and state authorities
overlap. In addition, the possible role of the armed forces in enforcing public health
measures is discussed, specifically whether the Posse Comitatus Act would constrain
any military role, and other statutory authorities that may be used for the military
enforcement of health measures.
Federal and State Quarantine and Isolation Authority
One very simple principle [justifies state coercion]. That principle is, that the
sole end for which mankind are warranted, individually or collectively, in
interference with the liberty of action of any of their number, is self-protection.
That the only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others.
John Stuart Mill (1856)
Introduction
The practice of avoiding persons with contagious diseases may be found in the
oldest of writings, including Leviticus and Numbers in the Old Testament, wherein
specific instructions are given for the inspection and sequestration of lepers.1 The
term “quarantine” is derived from the Italian words quaranta giorni, which refer to
the 40-day period during which certain ships arriving at the port of Venice during the
Black Death plague outbreaks of the 14th century were obliged to sit at anchor before
any persons or goods were allowed to go ashore.2 Following a plague epidemic in
London in 1664, England passed rigorous quarantine laws. All quarantined vessels
were required to show a solid yellow flag to indicate they were under quarantine. As
late as 1721, some ships coming to England from infected areas were burned at sea.3
The earliest evidence of quarantine in colonial America occurred in the
Massachusetts Bay Colony in 1647, when vessels from the West Indies were
forbidden to land or discharge passengers and cargo during a plague outbreak. The
first federal quarantine law was passed in 1796 in response to continued yellow fever
epidemics.4
In the event of a biological attack or the introduction of a highly contagious
disease affecting the public, the U.S. health system may take measures to prevent
those people infected with or exposed to a disease or a disease-causing biological
agent from infecting others.5 The terms used to describe these measures, quarantine
and isolation, generally apply to distinct groups of persons but are often used
interchangeably. Quarantine typically refers to the “(s)eparation of individuals who
have been exposed to an infection but are not yet ill from others who have not been
exposed to the transmissible infection.”6 Isolation refers to the “(s)eparation of
infected individuals from those who are not infected.”7 Varying degrees of
quarantine exist, and the authority to order quarantine or isolation is generally very
broad.
First, both complete quarantine and isolation usually involve the confinement of
contagious individuals to their residences pursuant to orders from the state health
department. Health officials post a public notice forbidding anyone from
entering or exiting the dwelling. Alternatively, health authorities may confine
an infected person to either a hospital or a prison. Second, health authorities may
order a modified quarantine, which selectively restricts an individual from
participation in certain activities, e.g. jobs involving food preparation, school
attendance, or particularly hazardous activities. The quarantine power also
includes the authority to place a contagious individual under surveillance to
insure strict compliance with quarantine orders. Finally, the health department
may issue segregation orders which require the separation of an entire group of
people from the general population. Quarantine orders may extend to any
persons who come into contact with the infected individual.8
Primary quarantine authority typically resides with state health departments and
health officials; however, the federal government has jurisdiction over interstate and
foreign quarantine. In addition, the federal government may assist with or take over
the management of an intrastate incident if requested by a state or if the federal
government determines local efforts are inadequate.9 This report examines
federalism and other constitutional issues related to quarantines, discusses current
federal and state statutes and regulations, and explains the military’s role in enforcing
quarantines.
Constitutional Issues
The preservation of the public health has historically been the responsibility of
state and local governments.10 Although the federal government has the authority to
authorize quarantine under certain circumstances, the primary authority exists at the
state level as an exercise of the state’s police power. The 4th Congress appears to
have recognized this principle when, in 1796, it debated whether to authorize the
President to establish regulations to impose quarantines at ports of entry.11 After
opponents argued that the authority belonged to the states, Congress passed a law
authorizing the President to assist states in enforcing their health laws,12 which it
soon replaced with a law requiring certain federal officials to observe restraints and
quarantines imposed by state laws and to aid state officials in their execution.13
In 1824, the Supreme Court alluded to a state’s authority to enact quarantine
laws in Gibbons v. Ogden.14 In Gibbons, the Court noted that although quarantine
laws may affect commerce, they are, by nature, health laws, and thus fall under the
authority of state and local governments. Courts have noted that the duty to ensure
that the public health is preserved is inherent to the police power of a state and cannot
be surrendered.15 However, the Supreme Court has recognized that state health laws
that intrude on a matter within Congress’s power to legislate must give way under the
Supremacy Clause.16
The federal or state origin of quarantine laws may influence the means and
methods of their enforcement. The Constitution does not expressly vest the executive
branch with the authority to execute state laws, and the federal government has no
authority to order state officials to execute federal law.17 Article IV, § 4, guarantees
federal assistance to states only in cases of invasion or insurrection, or at the request
of the state legislature (or the executive, if the legislature cannot be convened) in the
case of “domestic violence.” The Tenth Amendment provides that powers not
expressly vested in the federal government are retained by the states or the people.18
It may be argued that a distinctly federal interest must exist before Congress can
legislate with respect to public health and that, although the Constitution does not
expressly say so, federal law enforcement officers may not ordinarily enforce state
laws without the permission of the state government.19
Federal and state quarantine laws are also subject to constitutional due process
constraints. The Fifth and Fourteenth Amendments prohibit governments at all levels
from depriving individuals of any constitutionally protected liberty interest without
due process of law.20 What process may be due under certain circumstances is
generally determined by balancing the individual’s interest at stake against the
governmental interest served by the restraints, determining whether the measures are
reasonably calculated to achieve the government’s aims,21 and deciding whether the
least restrictive means have been employed to further that interest. In addition, some
have suggested that military enforcement of quarantines raises additional civil
liberties concerns. These aspects are discussed more fully below.
Federal Quarantine Authority
Current Law and Regulations
Federal quarantine authority derives from the Commerce Clause, which states
that Congress shall have the power “(t)o regulate Commerce with foreign Nations,
and among the several States...”22 Thus, under section 361 of the Public Health
Service (PHS) Act, 42 U.S.C. § 264, the Secretary of Health and Human Services
(HHS) has the authority to make and enforce regulations necessary “to prevent the
introduction, transmission, or spread of communicable diseases from foreign
countries into the States or possessions, or from one State or possession into any
other State or possession.”23 While providing the Secretary with broad authority to
promulgate regulations “as in his judgement may be necessary,” this law limits the
Secretary’s authority to the communicable diseases published in an Executive Order
of the President.24 The list of communicable diseases in Executive Order 13295
currently includes cholera, diphtheria, infectious tuberculosis, plague, smallpox,
yellow fever, viral hemorrhagic fevers, SARS, and influenza caused by novel or
reemergent influenza viruses that are causing or have the potential to cause a
pandemic.25
Generally, federal regulations authorizing the apprehension, detention,
examination, or conditional release of individuals are applicable only to individuals
coming into a state or possession from a foreign country or possession.26 Thus,
federal regulations require the reporting of ill passengers on international
conveyances such as airplanes and boats.27 During the 2003 response to the SARS
epidemic, federal officials provided health alert information to air travelers returning
to the United States from areas with SARS outbreaks, boarded airplanes with
travelers reported to be ill to assess their symptoms, and facilitated transport of ill
passengers to hospitals. Federal officials also provided updates to the public and
worked with state and local public health agencies to investigate possible SARS
cases.28
In addition, section 361 of the PHS Act authorizes the apprehension and
examination of “any individual reasonably believed to be infected with a
communicable disease in a qualifying stage29 and (A) to be moving or about to move
from a State to another State; or (B) to be a probable source of infection to
individuals who, while infected with such disease in a qualifying stage, will be
moving from a State to another State.”30 If found to be infected, such individuals
may be detained for such time and in such manner as may be reasonably necessary.31
During times of war, the authority to apprehend and examine individuals extends to
any individual “reasonably believed (1) to be infected with such disease [as specified
in an Executive order of the President] and (2) to be a probable source of infection
to members of the armed forces of the United States” or to individuals engaged in the
production or transportation of supplies for the armed forces.32
Regulations promulgated pursuant to this authority under the PHS Act may be
found in Parts 70 and 71 of Title 42 of the Code of Federal Regulations. Part 70
deals with interstate matters; Part 71 deals with foreign arrivals.33 Following a
transfer of authority from the Secretary of HHS to the Director of the CDC in 2000,
the Director of the CDC is authorized to take measures as may be necessary to
prevent the spread of a communicable disease from one state or possession to any
other state or possession if he or she determines that measures taken by local health
authorities are inadequate to prevent the spread of the disease.34 To prevent the
spread of diseases between states, the regulations also prohibit infected persons from
traveling from one state to another without a permit from the health officer of the
state, possession, or locality of destination, if such a permit is required under the law
applicable to the place of destination.35 Additional requirements apply to persons
who are in the “communicable period of cholera, plague, smallpox, typhus or yellow
fever, or who having been exposed to any such disease, is in the incubation period
thereof.”36
The PHS Act and related statutes also authorize measures to aid or enforce a
quarantine in the event of a public health emergency. Section 322(a) of the PHS
Act37 authorizes the PHS to care for and treat persons under quarantine. Such persons
may also receive care and treatment at the expense of the PHS from public or private
medical facilities when authorized by the officer in charge of the PHS station at
which the application is made.38 Section 311 of the PHS Act39 provides for federalstate
cooperative activities to enforce quarantines. The federal government may help
states and localities enforce their quarantines and other health regulations and, in
turn, may accept state and local assistance in enforcing federal quarantines. Under the
authority of 42 U.S.C. § 97, the Secretary of HHS may request the aid of Customs,
Coast Guard, and military officers in the execution of quarantines imposed by states
on vessels coming into ports.
Criminal sanctions are prescribed for violations of federal regulations issued
pursuant to section 361 of the PHS Act.40 Violation of a federal quarantine or
isolation order is a criminal misdemeanor, and individuals may be subject to a fine
of up to $250,000, one year in jail, or both. Organizational violations may be subject
to fines of up to $500,000 per event. Federal district courts may enjoin individuals
and organizations from violation of CDC quarantine regulations.41
Proposed CDC Regulations
Responding to the possible threat of an influenza pandemic, the CDC on
November 22, 2005, announced proposed changes to its quarantine regulations.42 If
adopted, these changes would constitute the first significant revision of the
regulations in Parts 70 and 71 in 25 years. The proposed changes are an outgrowth
of the CDC’s experience during the spread of SARS in 2003, when the agency
experienced difficulties locating and contacting airline passengers who might have
been exposed to the SARS virus during their travels. In announcing the proposed
regulations, CDC Director Julie Gerberding said, “These updated regulations are
necessary to expedite and improve CDC operations by facilitating contact tracing and
prompting immediate medical follow up of potentially infected passengers and their
contacts.”43
The proposed regulations would expand reporting requirements for ill
passengers44 on board flights and ships arriving from foreign countries. They would
also require airlines and ocean liners to maintain passenger and crew lists with
detailed contact information and to submit these lists electronically to CDC upon
request.45 The lists would be used to notify passengers of their suspected exposure
if a sick person were not identified until after the travelers had dispersed from an
arriving carrier. The proposed regulations address the due process rights of
passengers who might be subjected to quarantine after suspected exposure to disease;
the regulations also provide for an appeal process.46
State Police Powers and Quarantine Authority
Although every state has the authority to pass and enforce quarantine laws as an
exercise of their police powers, these laws vary widely by state. Generally, state and
local quarantines are authorized through public health orders, though some states
may require a court order before an individual is detained.47 For example, in
Louisiana, the state health officer is not authorized to “confine any person in any
institution unless directed or authorized to do so by the judge of the parish in which
the person is located.”48 Diseases subject to quarantine may be defined by statute,
with some statutes addressing only a single disease, or the state health department
may be granted the authority to decide which diseases are communicable and
therefore subject to quarantine.49 States also employ different methods for
determining the duration of the quarantine or isolation period. Generally, “release
is accomplished when a determination is made that the person is no longer a threat
to the public health, or no longer infectious.”50
One common characteristic of many state quarantine laws is their “overall
antiquity,” with many statutes being between 40 and 100 years old.51 The more
antiquated laws “often do not reflect contemporary scientific understandings of
disease, [or] current treatments of choice.”52 In the past, state laws were often
enacted with a focus on a particular disease, such as tuberculosis or typhoid fever,
leading to inconsistent approaches in addressing other diseases.53
Until recently, despite the inconsistencies and perceived problems with such
laws, state legislatures have not been forced to reevaluate their quarantine and
isolation laws due to a decline in infectious diseases and advances in public health
and medicine.54 However, in light of recent threats and security concerns, many
states have begun to reconsider their emergency response systems, including the
state’s authority to quarantine.55 A review of quarantine authority was listed as a
priority for state governments in the President’s 2002 National Strategy for
Homeland Security.56
Federal authority over interstate and foreign travel is clearly delineated under
constitutional and statutory provisions. Less clear, however, is whether the state
police powers may be used to restrict interstate travel to prevent the spread of
disease.57 In a public health emergency, federal, state, and local authorities may
overlap. For example, both federal and state agencies may have quarantine authority
over an aircraft arriving in a large city from a foreign country. Thus, coordination
between the various levels of government would be essential during a widespread
public health emergency.58 Bioterrorism exercises such as TOPOFF 2 in May 2002
have highlighted the legal issues that may arise when federal, state, and local
authorities respond simultaneously to a public health emergency. One author’s
comments on lessons learned from TOPOFF 2 are instructive:59
Perhaps the most significant lesson in reference to the law and TOPOFF 2 is the
most obvious, namely the fact that the law at the intersection of public health and
bioterrorism is extremely unsettled. There is not a lack of law to draw upon in
addressing specific questions, but rather a myriad of laws that must be
considered, most of which were developed to address more mundane public
health matters, or designed to respond to more traditional emergency situations.
It is critical for the legal responders to be sensitive to the rights of affected
individuals and the public at large, because in the heat of the moment concern for
individual rights may be seen as a secondary matter. In particular, heightened
sensitivity to human rights must be exhibited in areas where physical imposition
or restraint come into question, such as isolation, quarantine, and mandated
medical examinations. While considerable progress is being made in
coordinating approaches to the age-old practices of isolation and quarantine,
other rights issues in this context remain open questions, such as the need to be
sensitive to post-deprivation rights, the right to legal counsel, the nature of
clinical evidence required to justify such measures, and the policies concerning
the application of isolation and quarantine to populations.
Model State Emergency Health Powers Act
The Model State Emergency Health Powers Act (the Model Act) was drafted
by The Center for Law and the Public’s Health at Georgetown and Johns Hopkins
Universities.60 The Model Act seeks to “grant public health powers to state and local
public health authorities to ensure a strong, effective, and timely planning,
prevention, and response mechanism to public health emergencies (including
bioterrorism) while also respecting individual rights.”61 It is important to note that
the act is intended to be a model for states to use in evaluating their emergency
response plans; passage of the Model Act in its entirety is not required, so state
legislatures may select the entire model, parts of it, or none at all. Many states have
used parts of the Model Act while tailoring their statutes and regulations to respond
to unique or novel situations that may arise in their jurisdiction.62
The Model Act provides a comprehensive framework for state emergency health
powers, including statutory authority for quarantine63 and isolation.64 Section 604
of the Model Act authorizes the quarantine or isolation of an individual or groups of
individuals during a public health emergency.65 The Model Act encourages the
public health authority to adhere to specific conditions and principles when
exercising quarantine or isolation authority.66 These conditions and principles
include ensuring that the measures taken are the least restrictive means necessary to
prevent the spread of the disease; monitoring the condition of quarantined or isolated
individuals; and providing for the immediate release of individuals when they no
longer pose a substantial risk of transmitting the disease to others.67 The Model Act
provides that a failure to obey the rules and orders concerning quarantine and
isolation shall be treated as a misdemeanor.68
The Model State Emergency Health Powers Act sets forth procedures for
quarantine and isolation under two different sets of circumstances. Section 605(a)
addresses procedures for temporary quarantine and isolation without notice if a
“delay in imposing the isolation or quarantine would significantly jeopardize the
public health authority’s ability to prevent or limit the transmission of a contagious
or possibly contagious disease to others.” The quarantine or isolation must be
ordered through a written directive specifying the identity of the individuals subject
to the order, the premises subject to the order, the date and time at which the
quarantine or isolation are to commence, the suspected contagious disease, and a
copy of the provisions set forth in the act relating to isolation and quarantine.69 The
public health authority is required to petition within 10 days after issuing the
directive for a court order authorizing the continued isolation or quarantine if
needed.70
Apart from the emergency procedures outlined above, the public health authority
may petition a court for an order authorizing the quarantine or isolation of an
individual or groups of individuals, with notice of the petition given to the
individuals or groups of individuals in question within 24 hours.71 The public health
authority’s petition must include the same information as required in the emergency
directive discussed above, in addition to “a statement of the basis upon which
isolation and quarantine is justified in compliance with this Article.”72 A hearing
must be held within five days of the petition being filed, and the court “shall grant the
petition if, by a preponderance of the evidence, isolation or quarantine is shown to
be reasonably necessary to prevent or limit the transmission of a contagious or
possibly contagious disease to others.”73 An order authorizing quarantine or isolation
may not do so for a period exceeding 30 days, though the public health authority may
move to continue quarantine or isolation for additional periods not exceeding 30
days.74
The Model Act provides procedures that allow individuals subject to quarantine
or isolation to challenge their detention and obtain release, and it provides remedies
where established conditions were not met.75 Individuals subject to quarantine or
isolation would be appointed counsel if they are not otherwise represented in their
challenge.76
Legal Challenges to State Quarantine Authority
Public health measures in emergency situations, including quarantine, involve
balancing the rights of individuals with the state’s police power to protect the needs
of the public health, safety, and general welfare. Historically, this balance can be
seen in public health crises over the past century or so:77
It is well known that public health raises conflicts between individual and
societal interests. The context may vary, but the essential tension of balancing
individual and group interests is largely the same. For example, at the beginning
of the twentieth century, a key issue was vaccination against smallpox. In the
1980s, a contentious issue was the reporting of human immunodeficiency virus
(“HIV”) test results by name to public health authorities. After September 11,
2001, and the anthrax episode shortly thereafter, there has been a debate about
whether broad emergency powers to protect public health should be given to
governors and state health departments and, if so, whether special new legislation
is needed. Many of the same issues arise in the use of large-scale quarantine
measures, such as those used to combat SARS. [Footnotes omitted.]
The Supreme Court in Gibbons v. Ogden, in 1824, alluded to a state’s authority
to quarantine under the police powers. In 1902, the Court directly addressed a state’s
power to quarantine an entire geographic area in Compagnie Francaise de
Navigation a Vapeur v. Louisiana State Board of Health,78 where both the law and
its implementation were upheld as valid exercises of the state’s police power. A
shipping company in this case challenged an interpretation of a state statute that
conferred upon the state board of health the authority to exclude healthy persons,
whether they came from without or within the state, from a geographic area infested
with a disease.79 The shipping company alleged that the statute as interpreted
interfered with interstate commerce, and thus was an unconstitutional violation of the
Commerce Clause. The Court rejected this argument, holding that although the
statute may have had an effect on commerce, it was not unconstitutional.80
When a quarantine is established in a geographic area due to adverse conditions
in the area, courts are thus likely to uphold the restrictions. The Supreme Court has
stated that the right to travel “does not mean that areas ravaged by flood, fire or
pestilence cannot be quarantined when it can be demonstrated that unlimited travel
to the area would directly and materially interfere with the safety and welfare of the
area.”81 In Miller v. Campbell City,82 an order to evacuate an area was issued due to
leaking methane and hydrogen gases. After some residents from a subdivision in the
area became ill, the County Commissioners declared the subdivision uninhabitable.
The plaintiff was arrested when he crossed the roadblock enforcing the quarantine
in an attempt to return home. The court upheld a finding that the evacuation order
was substantially related to the public health and safety, and found no evidence that
the quarantine action was taken in bad faith or maliciously.83 The county needed to
act quickly because of the potential danger, so no liability was found.
Courts have recognized an individual’s right to challenge his or her quarantine
or isolation by petitioning for a writ of habeas corpus.84 Although the primary
function of a writ of habeas corpus is to test the legality of the detention,85 petitioners
often seek a declaration that the statute under which they were quarantined is
unconstitutional or violative of due process. Due process is a concern, though courts
are reluctant to interfere with a state’s exercise of police powers with regard to public
health matters “except where the regulations adopted for the protection of the public
health are arbitrary, oppressive and unreasonable.”86 The courts appear to defer to
the determinations of state boards of health and generally uphold such detentions as
nonviolative of due process and as valid exercises of a state’s duty to preserve the
public health. Thus, the court in United States v. Shinnick87 upheld the Public Health
Service’s medical isolation of an arriving passenger because she had been in
Stockholm, Sweden, a city declared by the World Health Organization to be a
smallpox-infected area, and she could not show proof of vaccination.
In People ex rel. Barmore v. Robertson,88 the court refused to grant a habeas
corpus petition for a woman who ran a boarding house where a person infected with
typhoid fever had boarded. The woman was not herself infected with the disease, but
she was a carrier and had been quarantined in her home. She argued that her
quarantine was unwarranted because she was not “actually sick,” though the court
noted that “
t is not necessary that one be actually sick, as that term is usually
applied, in order that the health authorities have the right to restrain his liberties by
quarantine regulations.”89 In justifying quarantine under these circumstances, the
court explained that because disease germs are carried by human beings, and as the
purpose of an effective quarantine is to prevent the spread of the disease to those who
are not infected, anyone who carries the germs must be quarantined.90 The court
found that in the case of a person infected with typhoid fever, anyone who had come
into contact with that person must be quarantined to prevent the spread of the
disease.91
However, some courts have refused to uphold the quarantine of an individual
in cases where the state is unable to meet its burden of proof concerning that
individual’s potential danger to others, or if a restriction is viewed as unreasonable
or oppressive.92 In Wong Wai v. Williamson,93 the San Francisco Board of Health
ordered all Chinese residents to be inoculated against bubonic plague and restricted
their right to leave the city, citing nine deaths allegedly from plague. The
inoculations were tainted, causing severe consequences. The court inferred that the
regulations were properly authorized, but nevertheless struck them down as “not
based on any established distinction in the conditions that are supposed to attend the
plague, or the persons exposed to its contagions.”94
Shortly after, in Jew Ho v. Williamson, the same court held that the quarantine requirements applied only to
Chinese and questioned whether bubonic plague actually caused the reported deaths.
It invalidated the quarantine as “unreasonable, unjust and oppressive.”95
Additional legal issues might be raised if quarantine, isolation, and other public
health measures were used to deal with a widespread public health emergency such
as a biological terror attack or an influenza pandemic. If government agencies
requisition private facilities for quarantine purposes, such as in the case of
overburdened medical facilities, the legal questions regarding eminent domain power
may arise.96 If a person with symptoms of a contagious disease is involuntarily
isolated in a hospital for a period of days or weeks, who pays for the person’s
hospital stay? What if medical personnel or hospital employees refuse to come to
work because of a medical emergency?97
Discrimination issues may arise if health
care providers refuse to treat infected patients or individuals who appear to be from
an area of the world where a disease outbreak originates, or if persons discriminate
against health care providers who treat individuals with infectious conditions.98 The
legality concerning mandatory vaccinations as a health measure may arise during an
infectious disease outbreak,99 and health authorities may face the related issue of
rationing limited supplies of available vaccines.100
The application of statutes such as the Emergency Medical Treatment and
Active Labor Act (EMTALA)101 to a public health emergency situation may need to
be assessed. EMTALA requires hospitals to evaluate all patients who come to an
emergency room and to stabilize patients needing emergency care prior to any
transfer. Compliance with EMTALA during a health emergency may be
compromised if hospitals are overwhelmed by large numbers of persons seeking
treatment.102 The Health Insurance Portability and Accountability Act (HIPAA),103
and its implementing regulations at 45 C.F.R. Parts 160 and 164 (Privacy Rule), may
also need to be assessed. While HIPAA requirements do not include broad waivers
that would exempt hospitals from compliance during an emergency situation, there
are provisions in the Privacy Rule that may be relaxed under emergency
circumstances.
A new development in the law relating to quarantine is the possible use of selfimposed
or home quarantines. States may need to consider whether their ability to
impose quarantine also includes the authorities necessary to support a population
asked to voluntarily stay at home for a period of time.104 Such authority may include
the ability to offer legal immunity to businesses asked to provide facilities for
quarantine. Compliance with public health measures such as quarantine or isolation
may also be affected by employment-related issues, because individuals may fear
losing their jobs or benefits while staying at home for social distancing measures
such as “snow days” or voluntary quarantines, or for caring for a sick relative.105
Military Enforcement of Health Measures
In light of recent concerns that a strain of avian influenza could mutate to cause
a pandemic, President Bush has suggested that Congress should authorize him to
employ military forces to enforce any quarantine that might become necessary in the
event of an outbreak in the United States.106 President Bush also suggested that the
National Guard might be employed under federal rather than state control to carry out
measures to contain such an outbreak.107 Critics of the proposal have expressed
concern that an additional exception to the Posse Comitatus Act,108 which prohibits
active military personnel from carrying out certain law enforcement activities without
express statutory authority,109 would lead to a form of martial law, with the attendant
threats to civil liberties.110
Posse Comitatus Act
The Posse Comitatus Act, 18 U.S.C. § 1385, punishes those who, “except in
cases and under circumstances expressly authorized by the Constitution or Act of
Congress, willfully use any part of the Army or the Air Force as a posse comitatus
or otherwise to execute the laws.”111 Some view the act as the embodiment of the
American tradition that abhors the use of soldiers to compel citizens to obey the
law.112 Yet the Constitution does not explicitly bar the use of military forces in
civilian situations or in matters of law enforcement; in fact, it empowers Congress
to provide for calling forth the militia to execute federal law.113
Courts have held that, absent a recognized exception, the Posse Comitatus Act
is violated when (1) civilian law enforcement officials make “direct active use” of
military investigators, (2) the use of the military “pervades the activities” of the
civilian officials, or (3) the military is used to subject citizens to the exercise of
military power that is “regulatory, prescriptive, or compulsory in nature.”114 To the
extent that quarantine enforcement measures involve the compulsion of civilians to
remain in or leave an area, for example, it appears that the Posse Comitatus Act
would be implicated. Thus, unless a pandemic were to lead to significant civil unrest
or call for other military activity already authorized pursuant to existing exceptions,115
Congress would have to enact a law to authorize military enforcement of health
measures.
The act does not prohibit activities conducted for a military purpose, which
could encompass restrictions implemented on bases or to control a communicable
disease affecting service members. The Posse Comitatus Act does not apply to the
National Guard unless it is employed in federal service as a reserve force of the
armed forces. If the National Guard is called up to enforce U.S. laws, however, it is
not subject to the Posse Comitatus Act.116
Possible Military Enforcement Under Other Statutes
The President may be authorized by the Constitution or by statute to use the
military to enforce a quarantine or conduct other law enforcement activities as needed
during an epidemic. Prior to the Civil War, Congress was generally reluctant to
involve itself with any type of disaster assistance,117 and health measures, except in
areas under exclusive federal jurisdiction, were generally left to the regulation of the
states. However, Congress has given the President, through the Secretary of HHS,
the authority to help states enforce quarantine laws with respect to any vessels
arriving in or bound to any of their ports or districts, including the use of the
military.118 This authority, which originated in a law passed in 1796,119 does not
extend to the control of movement of persons within the United States.
In 1866, when issues involving military government and states’ rights figured
prominently in the nation’s political discourse, the Senate considered a bill that
would have given the Secretary of War the responsibility, “with the cooperation of
the Secretary of the Navy and the Secretary of the Treasury ... to cause a rigid
quarantine against the introduction into this country of the Asiatic cholera through
its ports of entry.”120 The bill would have further authorized the Secretary of War to
“use the means at [his] command” to enforce “sanitary cordons to prevent the spread
of said disease from infected districts adjacent to or within the limits of the United
States.” After the bill’s sponsor affirmed that the power could extend to the
declaration of martial law,121 the questioner responded, “I would rather have the
cholera than such a proposition as this.”122 Most of the ensuing debate centered
around Congress’s power to legislate, either under the Commerce Clause, the
Guarantee Clause, or the “war power” and on whether the legislation would
impermissibly intrude on the police powers of the states.123 The power to regulate
foreign commerce appears to have attracted the most support; as finally passed, the
bill gave authority to the Secretary of the Treasury, until January of 1867, to make
and enforce quarantine regulations deemed necessary to help state and municipal
authorities guard against cholera.124
Outside of the Coast Guard’s role in enforcing CDC health regulations with
respect to foreign passengers and cargo,125 the armed forces have not historically
played a major role in enforcing quarantines during epidemics.126 The Army Medical
Corps has provided medical assistance to victims of yellow fever and other epidemics
and contributed extensively to medical research,127 but it does not appear that an
outbreak of disease has ever overwhelmed state and local authorities to the point
where federal military intervention was required. It is, however, conceivable that in
a major epidemic, opposition to quarantine measures could lead to civil disorder and
significant numbers of state and local law enforcement officials could themselves fall
victim to the disease, in each case to such an extent that federal assistance or
intervention would be needed to ensure the execution of federal or state laws.
In such circumstances, the President could invoke the Insurrection Act, 10 U.S.C. §§
331-335, to employ the National Guard or regular armed forces to execute federal
law or state law (if requested by the state legislature).
Section 331 of title 10, U.S. Code, authorizes the President to use the military
to suppress an insurrection at the request of a state government. This authorization
is meant to fulfill the federal government’s responsibility to protect states against
“domestic violence.” Section 332 delegates Congress’s power under the
Constitution, art. I, § 8, cl. 15, to the President, authorizing him to determine that
“unlawful obstructions, combinations, or assemblages, or rebellion against the
authority of the United States make it impracticable to enforce the laws of the United
States” and to use the armed forces as he considers necessary to enforce the law or
to suppress the rebellion. Section 333 permits the President to use the armed forces
to suppress any “insurrection, domestic violence, unlawful combination, or
conspiracy” if law enforcement is hindered within a state and local law enforcement
is unable to protect individuals’ rights guaranteed by the Constitution, or if the
unlawful action “obstructs the execution of the laws of the United States or impedes
the course of justice under those laws.”
This section was enacted to implement the
Fourteenth Amendment and does not require the request or even the permission of
the governor of the affected state. The Insurrection Act has been used to send the
armed forces to quell civil disturbances a number of times during U.S. history, most
recently during the 1992 Los Angeles riots and during Hurricane Hugo in 1989.128
The President could use the Insurrection Act to enforce health measures in the event
that civil officials were overwhelmed during a pandemic and unable to enforce those
laws.
